Last Updated on April 22, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Right not to be tried or punished twice (Article 4 of Protocol No. 7)
The judgment in A and B v. Norway[137] concerned parallel or dual administrative and criminal sanctions for the same conduct.
Tax surcharges were imposed on the applicants following administrative proceedings because they had omitted to declare certain income in tax returns. In parallel criminal proceedings they were also subsequently convicted and sentenced for tax fraud for the same omissions. They complained under Article 4 of Protocol No. 7 that they had been prosecuted and punished twice in respect of the same offence.
The judgment is important because it clarifies the Court’s case-law concerning the compliance with Article 4 of Protocol No. 7 (ne bis in idem) of parallel or dual administrative and criminal sanctions for the same conduct, and provides a framework for the examination of such compliance.
(i) The Grand Chamber firstly reviewed the continuing relevance of Sergey Zolotukhin v. Russia.[138]
– Whether the administrative proceedings were “criminal” for the purposes of Article 4 of Protocol No. 7 was to be assessed, as in the Sergey Zolotukhin judgment, on the basis of the three Engel[139] criteria developed for the purposes of Article 6: the ne bis in idem principle was mainly concerned with due process which was the object of Article 6. That said, once the ne bis in idem principle was to apply, there was an evident need for a “calibrated approach” to the manner in which that principle was to be applied to proceedings combining administrative and criminal penalties.
– The Sergey Zolotukhin judgment clarified that, whether the offences dealt with in separate proceedings were the same (idem) required a facts-based assessment (a prosecution or trial of a second “offence” was prohibited in so far as the latter arose from facts which were identical or substantially the same), rather than a formal assessment comparing the “essential elements” of the offences.
– That judgment also confirmed that Article 4 of Protocol No. 7 provided that, for the same offence, no one should be (i) liable to be tried; (ii) tried; or (iii) punished.
Otherwise, the Sergey Zolotukhin judgment was found to offer little guidance to situations such as in the present case where the proceedings had not in reality been duplicated (bis) but combined rather in an integrated manner so as to form a coherent whole (what the Grand Chamber called “dual” proceedings).
(ii) The Grand Chamber therefore reviewed the Court’s case-law (which pre- and post-dated the Sergey Zolotukhin judgment) on the application of the ne bis in idem principle to such dual proceedings.
That case-law was found to confirm that a State should be able to choose complementary legal responses to socially offensive conduct (such as in a traffic or tax context). This legal response would not amount to a duplication of proceedings proscribed by Article 4 of Protocol No. 7 if it was convincingly demonstrated that the dual proceedings were “sufficiently closely connected in substance and in time” in that they were “combined in an integrated manner so as to form a coherent whole” enabling the different aspects of the wrongdoing to be addressed in a foreseeable and proportionate manner so that the individual concerned was not subjected to injustice (a test largely drawn from, inter alia, R.T. v. Switzerland[140], Nilsson v. Sweden[141], as well as Nykänen v. Finland[142]).
As to what the Grand Chamber meant by “sufficiently connected in substance”, certain conditions would be determinative including whether: the different proceedings pursued complementary purposes addressing different aspects of the impugned conduct; the conduct of dual proceedings was foreseeable; the proceedings avoided duplication in the collection and assessment of evidence; and, importantly, whether the second sanction imposed took account of the first. It was also relevant that the administrative proceedings concerned a matter (such as traffic or tax offences) which differed from the hard-core of criminal law since the “criminal-head guarantees [of Article 6] will not necessarily apply with their full stringency”[143].
As to “sufficiently connected in time”, the Grand Chamber clarified that that connection had to be sufficiently close to protect the individual from being subjected to uncertainty and delay and from proceedings becoming protracted over time.
(iii) Applying these principles to the facts of the present applications, the Grand Chamber was satisfied that, whilst different sanctions had been imposed on the applicants by two different authorities in different proceedings, there was nevertheless a sufficiently close connection between them, both in substance and in time, “to consider them as forming part of an integral scheme of sanctions under Norwegian law” for failure to provide information for their tax returns. The dual proceedings did not constitute, therefore, a proscribed duplication of proceedings so there had been no violation of Article 4 of Protocol No. 7 to the Convention.
(iv) It remains to be seen to what extent these principles will apply to consecutive proceedings for the same conduct.
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137. A and B v. Norway [GC], nos. 24130/11 and 29758/11, ECHR 2016.
138. Sergey Zolotukhin v. Russia [GC], no. 14939/03, ECHR 2009.
139. Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22.
140. R.T. v. Switzerland (dec.), no. 31982/96, 30 May 2000.
141. Nilsson v. Sweden (dec.), no. 73661/01, 13 December 2005.
142. Nykänen v. Finland, no. 11828/11, 20 May 2014.
143. Jussila v. Finland [GC], no. 73053/01, § 43, ECHR 2006-XIV.
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